Day 1 - Thursday, June 25, 2015

Registration and Continental Breakfast
Co-Chairs’ Opening Remarks

Stephen Hoke
Hoke LLC

Scott M. Seaman

Hinshaw & Culbertson LLP

Views from the Bench: Judicial Perspectives and Guidance for Insurance Coverage Litigation

Hon. Jeff Shadwick

Harris Co. 55th Civil Dist. Ct., Tex.

Hon. Jose M. Rodriguez

11th Judicial Circuit Court of Florida

Hon. Anthony J. Mohr
Los Angeles Superior Court

Hon. Richard Kramer (ret.)

CA Super. Ct., San Fran.

Hon. Patrick J. Walsh

U.S. Dist. Ct., C.D. Cal.

The Honorable Peter Flynn (ret.)
Circuit Court, Cook County Illinois

Hon. Richard S. Schmidt

U.S. Bankr. Ct., S.D. Tex.

Hon. Donetta W. Ambrose
Senior District Judge
U.S. Dist. Ct., W.D. Pa.

Hon. Ruben Castillo

U.S. Dist. Ct., N.D. Ill.


Moderator: Steven R. Gilford

Proskauer Rose LLP

Networking and Refreshment Break
State of Existing Allocation Law, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims

Sharon T. Doherty
Senior Coverage Counsel, NAC Claims Legal Group
Zurich North America

Jeffrey O. Davis
Quarles & Brady LLP

Laura A. Foggan
Wiley Rein LLP

Frank Winston Jr.
Steptoe & Johnson LLP

Tancred Schiavoni

O’Melveny & Myers LLP

  • All sums
    • Impact of newer “those sums” language on allocation issues, including in states where allocation has been addressed under prior policy language
    • How credits for prior settlements are handled in allocation
  • Pro rata
    • Start and end dates for proper application of pro rata allocation
  • Others (e.g. New Jersey’s approach in Carter Wallace)
  • Texas’ approach
  • Differences amongst the approaches to allocation used for asbestos, environmental, and other long-tail claims
    • Unique issues that arise
    • Best practices for overcoming unique challenges
  • “Other insurance” clauses vs. public policy
  • Independent counsel (Cumis)
    • Rights to and limitations on Cumis counsel
    • Examples of when the right is triggered

Relationship Between Allocation and Trigger, With a Focus on Asbestos, Environmental, and Other Long-Tail Claims

James F. Dorion
Managing Director - Global Practice Leader, Complex Liability & Risk Services

Robert D. Goodman
Debevoise & Plimpton LLP

Stephen Hoke
Hoke LLC

Lynn H. Murray

Shook, Hardy & Bacon L.L.P.

  • Continuous trigger
  • Others (e.g. Illinois’ triple trigger approach)
  • Manifestation trigger (e.g. Keasbey)
  • Uninsured periods
  • Contribution permitted?
  • Differences amongst the approaches to trigger used for asbestos, environmental, and other long-tail claims
    • Unique issues that arise
    • Best practices for overcoming unique challenges

Networking Luncheon for Speakers and Attendees
Second Wave Allocation Issues: SIRs, Deductibles, Exhaustion, and More

Alex E. Potente

Sedgwick LLP

Donna J. Vobornik

Dentons US LLP

Timothy R. Sullivan
McCormick Barstow LLP

  • Policy years with insolvencies
  • SIRs and deductibles
    • Differences between SIRs and deductibles
    • Exhaustion of same
    • Key question for policyholders – how many SIRs do they pay?
    • Bankruptcy considerations
  • Number of occurrences
  • Non-cumulation clauses
  • Horizontal exhaustion – exhaustion by layers (primary vs. excess)
    • Who is responsible for gaps as coverage in a given layer exhausts?
    • Lincoln Electric
  • White space (i.e. underinsured years due to exhaustion or failure to buy enough coverage)
  • Stacking issues
    • Types of policies that can be stacked
    • Impact of SIRs, deductibles, etc.
  • Issues that can arise as policy layers exhaust
    • How do you prove exhaustion of underlying coverage?
    • What do you do when excess insurers refuse to acknowledge exhaustion?
    • Who controls the defense when some coverage is primary and the rest is excess or exhausted with no defense duty?

Networking and Refreshment Break
Importance of Choice of Law: Assessing the Current Rules in Key Jurisdictions, Recent Allocation Rulings and Their Impact on Disputes, and More

Robert M. Horkovich
Anderson Kill, P.C.

Suzanne C. Midlige

Coughlin Duffy LLP

  • Recent allocation rulings and their impact on current and future allocation trends and disputes
  • Assessing the various jurisdictional approaches to allocation
  • Current rules in key jurisdictions
  • Unresolved issues and the next possible battlegrounds
  • Advantage of filing first?
  • Benefits of securing a favorable jurisdiction

Allocation of Defense Costs in the D&O Context

Tyler C. Gerking

Farella Braun + Martel LLP

Susan White
Manatt, Phelps & Phillips, LLP

  • Defense v. indemnity for defense
  • Exclusions impact
  • Allocation between covered and uncovered claims
  • Allocation when the entity is covered but not individuals
  • Allocation between defense costs and indemnity costs

Conference Adjourns to Day Two

Day 2 - Friday, June 26, 2015

Continental Breakfast
Excess Insurance: Questions Raised by Qualcomm and Issues Relating to the Duty to Defend

Scott M. Seaman

Hinshaw & Culbertson LLP

Steven C. Schwartz
Chaffetz Lindsey LLP

Seth D. Lamden

Neal, Gerber & Eisenberg LLP

Helen K. Michael

Kilpatrick Townsend & Stockton LLP

  • Does a primary carrier’s settlement for less than its full limits trigger the excess policy status?
  • Settlement considerations when in a Qualcomm jurisdiction
  • Where do key jurisdictions stand with respect to these issues?
  • Case law regarding duty to defend by excess carriers
  • Case law regarding possible drop down by excess carriers

Allocation Issues That Arise When Reinsurance is Involved

Marc L. Abrams
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Amy R. Paulus

Clausen Miller P.C.

Ira J. Belcove
Butler Rubin Saltarelli & Boyd LLP

Michael J. Blair
Vice President – Environmental Claims
Gen Re – A Berkshire Hathaway Company

Dennis Helewa
Vice President & Assistant Counsel, Claims
SCOR Reinsurance

  • Follow the fortunes clauses
  • How binding are a cedant’s settlement allocations?
  • Key points of contention between cedents and reinsurers
    • Number of deductibles
  • Assessment of recent key cases

Networking and Refreshment Break
Bankruptcy, Insolvency, and Their Impact on Insurance Allocation

Robert Lenahan
Associate General Counsel
Legion Insurance Company (in liquidation)

Peter L. Tracey
Perkins Coie LLP

Ernesto R. Palomo

Locke Lord LLP

Jeanine D. Clark
Margolis Edelstein

  • Allocation in policyholder bankruptcies
    • Different approaches
    • Valuing future losses
      • Garlock discussion/update
      • Valuing supplemental defense costs (i.e. costs in addition policies)
    • Standing issues
  • Defunct companies
    • Revival of defunct companies to access insurance – state of the law
    • Who controls defense and settlement and related issues?
  • Recovery from insolvent insurers
    • Status of U.S. and UK law
    • Allocation approaches
      • Prevalence of the pro rata approach in the U.S. and UK
      • Choice of law – Midland (all sums possible in New York)
    • Is IBNR permitted?
      • How do you value this?
    • How to prepare and present a claim
      • Trigger and date of first exposure (DOFE) issues
      • Exhaustion issues
      • How do you value the impact of exclusions (e.g. pollution exclusion)?
  • State Guaranty Associations
    • Assessing the impact of Farmers Mutual
      • No contribution for other insurers
      • Is this case a sign of things to come or an outlier?
      • Impact on Carter Wallace ruling regarding insolvents

Resolving Allocation Disputes Through Mediation

Jeff Kichaven
Principal Mediator
Jeff Kichaven Commercial Mediation

Eileen King Bower

Troutman Sanders LLP

Cassandra S. Franklin
Managing Attorney – Claims Coverage Counsel
Allianz Global Corporate & Specialty

  • Mediation strategies to use when negotiating settlements in jurisdictions with unsettled allocation issues, multiple claimants, and concepts unfamiliar to plaintiffs’ counsel and insureds
  • Navigating the mediation process when disputes over limits or coverage are involved
  • Unique considerations for mediating allocation among consecutive policy periods, overlapping types of coverage, and/or multiple parties
  • Setting the stage in advance of mediation
  • How to select an effective mediator for allocation

Conference Ends